US Department of Justice Antitrust Division
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DOJ Issues Antitrust Guidance on Competitor Collaboration to Combat COVID-19

The US Department of Justice (DOJ) Antitrust Division issued a business review letter that underscores the flexibility of the US antitrust regulators towards competitor collaborations aimed at increasing the supply and distribution of medical equipment needed to fight the Coronavirus (COVID-19) pandemic. This letter can provide guidance to other companies considering collaborations to assist in the response to COVID-19. Access full article.

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THE LATEST: AAG Delrahim Withdraws Statement on Remedies for Standards-Essential Patents Subject to Voluntary FRAND Commitments, Elaborates Views on SSOs

In a December 7 speech before the Berkeley-Stanford Advanced Patent Law Institute, the US Department of Justice Antitrust Division (DOJ) Assistant Attorney General Makan Delrahim (AAG Delrahim) announced that the DOJ will withdraw its assent to the 2013 Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary FRAND Commitments (the Policy Statement) and elaborated upon the DOJ’s enforcement approach to standard setting organizations (SSOs). WHAT HAPPENED: AAG Delrahim voiced support for the right of patent holders to seek injunctions against misuses of their technologies. According to AAG Delrahim, the appropriate test for injunctive relief in patent cases is the one articulated by the US Supreme Court in eBay v. MercExchange. Under the eBay standard, to obtain an injunction, a patent holder must demonstrate that: It has suffered an irreparable injury; Remedies available at law, such as monetary damages, are inadequate to compensate...

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Aerospace & Defense Series: Behavioral Remedies Remain a Viable Solution for Vertical Mergers in the Defense Industry

The recent FTC decision in the Northrop Grumman / Orbital ATK matter has shed light on the agency’s vertical merger enforcement policy and outlined a path to antitrust merger clearance for the Aerospace and Defense industry. The FTC’s June 5 consent decree shows behavioral remedies remain a viable solution if the parties can prove both that the DoD would benefit from the transaction and that those benefits would be lost if the agency required a divestiture. Continue Reading.  

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THE LATEST: DOJ Continues Its Intense Focus on Decree Compliance

WHAT HAPPENED In March, we discussed the US Department of Justice (DOJ) Antitrust Division’s move to update its standard consent decree language to enhance decree enforceability. Among other things, the changes: Reduced the burden of proof for DOJ to demonstrate a decree violation in court, and Shifted DOJ’s attorney’s fees to the losing party in the event that a decree enforcement action became necessary. Now, DOJ Antitrust Division Assistant Attorney General Makan Delrahim has further intensified the Division’s compliance focus by announcing the creation of an Office of Decree Enforcement at the Division (Office). The Office would have “the sole goal to ensure compliance with, and enforcement of, [Antitrust Division] decrees.” Currently, the DOJ does not have a centralized organization dedicated to this function, and the merger review units within the DOJ are responsible for enforcing the orders in cases they bring. AAG Delrahim has stated that further...

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Individual Accountability Likely to Continue for Cartel Enforcement

To date, the US Department of Justice Antitrust Division (DOJ) has obtained six corporate guilty pleas, three individual indictments and one individual guilty plea in its long-running investigation into price fixing of capacitors by primarily Japanese manufacturers. Capacitors are small electronic components that are found in nearly every device that is plugged in or powered by a battery. WHAT HAPPENED In a May 24 sentencing hearing, the DOJ took sharp criticism from Judge James Donato (NDCA) for what he called a “sweetheart deal” by DOJ in its plea agreement with Matsuo Electric Co. The plea called for payment of a $4.17 million fine to be paid over five years. The deal, reached at the same time as an individual plea of Matsuo’s former sales manager Satoshi Okubo, was one that DOJ had touted, arguing that “[t]he simultaneous acceptance of responsibility by a company and the executive who supervised its involvement in the cartel demonstrates in a concrete way...

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THE LATEST: Acting AAG Clarifies Scope of Amnesty for Executives

The US Department of Justice (DOJ) Antitrust Division (the Division) offers leniency to the first company to contact the Division and acknowledge participation in an antitrust conspiracy such as price-fixing, bid-rigging or market allocation. The Division’s leniency program requires the applicant to fully cooperate with the government’s investigation and to candidly acknowledge its wrongdoing, among other requirements. In return, the successful applicant receives a pass from corporate criminal exposure and also receives immunity for its officers, directors and executives. The leniency program is the crown jewel of the Division’s enforcement regime because of its demonstrated success generating new cases. The program’s ability to attract applicants is based on its transparency and predictability. The level of trust required for companies to air their criminal wrongdoing to prosecuting authorities is not automatic. It has been earned over the years by a program...

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Breaking The Health Company Compliance Program Monopoly

The ultimate effectiveness of the corporate compliance program depends on its ability to mitigate risks arising from all substantive laws materially affecting the company — not only the most visible or notorious ones. Yet, both experience and impression suggest that many health company compliance programs are primarily focused on addressing concerns arising from the anti-fraud and abuse, self-referral and reimbursement rules. This level of focus is understandable, given the historical prominence of these rules and the strong public voice of the U.S. Department of Health and Human Services Inspector General. However, such program imbalance can itself lead to significant compliance concerns given the increasing extent to which the civil and criminal antitrust laws are applied to the health care sector. The fundamental purpose of a corporate compliance program is to detect the particular types of misconduct most likely to occur in a particular corporation’s line...

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